Stupid Patent Of The Month: Elsevier Patents Online Peer Review

from the my-peers-think-this-is-stupid dept

On August 30, 2016, the Patent Office issued U.S. Patent No. 9,430,468, titled; “Online peer review and method.” The owner of this patent is none other than Elsevier, the giant academic publisher. When it first applied for the patent, Elsevier sought very broad claims that could have covered a wide range of online peer review. Fortunately, by the time the patent actually issued, its claims had been narrowed significantly. So, as a practical matter, the patent will be difficult to enforce. But we still think the patent is stupid, invalid, and an indictment of the system.

Before discussing the patent, it is worth considering why Elsevier might want a government granted monopoly on methods of peer review. Elsevier owns more than 2000 academic journals. It charges huge fees and sometimes imposes bundling requirements whereby universities that want certain high profile journals must buy a package including other publications. Universities, libraries, and researchers are increasingly questioning whether this model makes sense. After all, universities usually pay the salaries of both the researchers that write the papers and of the referees who conduct peer review. Elsevier’s business model has been compared to a restaurant where the customers bring the ingredients, do all the cooking, and then get hit with a $10,000 bill.

The rise in wariness of Elsevier’s business model correlates with the rise in popularity and acceptance of open access publishing. Dozens of universities have adopted open access policies mandating or recommending that researchers make their papers available to the public, either by publishing them in open access journals or by archiving them after publication in institutional repositories. In 2013, President Obama mandated that federally funded research be made available to the public no later than a year after publication, and it’s likely that Congress will lock that policy into law.

Facing an evolving landscape, Elsevier has sought other ways to reinforce its control of publishing. The company has tried to stop researchers from sharing their own papers in institutional repositories, and entered an endless legal battle with rogue repositories Sci-Hub and and LibGen. Again and again, when confronted with the changing face of academic publishing, Elsevier resorts to takedowns and litigation rather than reevaluating or modernizing its business model.

Elsevier recently acquired SSRN, the beloved preprints repository for the social sciences and humanities. There are early signs that it will be a poor steward of SSRN. Together, the SSRN acquisition and this month’s stupid patent present a troubling vision of Elsevier’s new strategy: if you can’t control the content anymore, then assert control over the infrastructures of scholarly publishing itself.

Elsevier filed its patent application on June 28, 2012. The description of the invention is lengthy, but is essentially a description of the process of peer review, but on a computer. For example, it includes a detailed discussion of setting up user accounts, requiring new users to pass a CAPTCHA test, checking to see if the new user’s email address is already associated with an account, receiving submissions, reviewing submissions, sending submissions back for corrections, etc, etc, etc.

The patent departs slightly from typical peer review in its discussion of what it calls a “waterfall process.” This is “the transfer of submitted articles from one journal to another journal.” In other words, authors who are rejected by one journal are given an opportunity to immediately submit somewhere else. The text of the patent suggests that Elsevier believed that this waterfall process was its novel contribution. But the waterfall idea was not new in 2012. The process had been written about since at least 2009 and is often referred to as “cascading review.”

The patent examiner rejected Elsevier’s application three times. But, taking advantage of the patent system’s unlimited do-overs, Elsevier amended its claims by adding new limitations and narrowing the scope of its patent. Eventually, the examiner granted the application. The issued claims include many steps. Some of these steps, like “receive an author-submitted article,” would be quite hard to avoid. Others are less essential. For example, the claims require automatically comparing a submission to previously published articles and using that data to recommend a particular journal as the best place to send the submission. So it would be an exaggeration to suggest the patent locks up all online peer review.

We hope that Elsevier will not be aggressive in its own interpretation of the patent’s scope. Unfortunately, its early statements suggest it does take an expansive view of the patent. For example, an Elsevier representative tweeted: “There is no need for concern regarding the patent. It’s simply meant to protect our own proprietary waterfall system from being copied.” But the waterfall system, aka cascading peer review, was known years before Elsevier filed its patent application. It cannot claim to own that process.

Ultimately, even though the patent was narrowed, it is still a very bad patent. It is similar to Amazon’s patent on white-background photography where narrowed but still obvious claims were allowed. Further, Elsevier’s patent would face a significant challenge under Alice v CLS Bank, where the Supreme Court ruled that abstract ideas do not become eligible for a patent simply because they are implemented on a generic computer. To our dismay, the Patent Office did not even raise Alice v CLS Bank even though that case was handed down more than two years before this patent issued. Elsevier’s patent is another illustration of why we still need fundamental patent reform.

Reposted from the EFF’s Stupid Patent of the Month series.

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Companies: elsevier

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Comments on “Stupid Patent Of The Month: Elsevier Patents Online Peer Review”

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Rapnel (profile) says:

I don’t understand. Why would anyone patent peer review on a computer or otherwise? Isn’t it kind of up to the, I don’t know, peers doing the reviewing?

Oh.. nevermind. It must be to protect the furtherance of the progress of the sciences and the arts. I get it.

From this angle Elsevier looks like it’s aim is to crush innovation vs innovate, and with a patent, no less. Ironic.

Elsevier is the epitome of preventing the flow of academic information.

“I was published in another academic journal! Woohoo!! No, no monies.” … Uhhh, that still means that much to you guys when, you know, a huge chunk of the population is a few key taps away? I guess it’s pretty cool to be smart, huh? And have all your hard work and research paid for and seen by millions.. well, except for that last part.

That type of “progress” needs a vaccination.

That One Guy (profile) says:

Re: Re:

Yes, but doing it on a computer changes it from ‘meh’ to ‘amazingly innovative‘, and absolutely deserving of a patent!

I mean come on, who could have ever conceived of something done without a computer, instead being done with a computer to speed up the process? The kind of brilliance required to make that leap absolutely deserves a patent.

bikey (profile) says:


One also wonders how much of a role Elsevier played in the forthcoming EU proposed directive overhauling copyright law to include ‘publishers’ among those eligible to exercise related/neighboring rights under EU copyright law (as well as extending these rights from 50 to 70 years). Much attention has been paid to new rights to newspapers, but at best Elsevier stands to gain, even if it was among the lobbyists (which is doubtful).

Derek Kerton (profile) says:


“Elsevier’s business model has been compared to a restaurant where the customers bring the ingredients…”

…takes them to another customer’s house and kitchen,

“…do all the cooking, and then get hit with a $10,000 bill from the “restaurant”.

Otherwise, the analogy gives Elsevier credit for the restaurant facility, but the peer review process is done by other Profs located at other universities. Elsevier is just a market…that charges like it were the supplier.

– It’s like if a real estate agent sold your house, then kept all the money.

– It’s like if Uber arranged for drivers with cars to do business with passengers, but after a driver gave one ride, Uber owns her car and she’s not allowed to use it anymore.

– It’s like if the NASDAQ hosted your trades and equity sells, but then owns your stock, and gives you a cut of the dividends.

– It’s like if the RIAA companies produced your record, but then had you by the nutsack, owned your music, and extracted every penny they could from it, while giving the artist a pittance or nothing at all…hey wait, it IS like that.

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